November 26, 2008
Re: Appellate Division Strikes Down DEP Rules
In the case of Borough of Avalon v. New Jersey Department of Environmental Protection (A-3710-07T3), handed down by the New Jersey Appellate Division on November 19, 2008, the Court struck down rules promulgated by the Department of Environmental Protection (DEP) requiring that municipally-owned beaches be open at all times unless permission to close them was obtained from the DEP, as well as those conditioning the grant of state aid for shore protection on the provision of parking spaces or restrooms in proximity to the beach. The court said that neither the Public Trust Doctrine nor the Coastal Areas Facility Review Act (CAFRA) gave the DEP authority for either of these rules, and that until and unless the Legislature specifically gave this authority to the DEP, the agency could not usurp the municipality’s statutory authority under its police powers to control its beaches.
The court emphasized that, where an agency is not expressly granted a power by the Legislature, agency action under implied authority is allowed only if such authority is truly incidental to the power granted. On the other hand, if the assertion of such authority would involve important policy issues, the agency cannot promulgate rules or take other action without authorization by the Legislature. The Court found that the power to control municipal beach hours and the number of parking places and restrooms near municipal beaches did implicate such policy issues, and thus could not be seen as incidental to the powers already granted to DEP in this area.
This case can be accessed at: http://www.judiciary.state.nj.us/opinions/lastweek.htm
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Very truly yours,
William G. Dressel, Jr.